Home » 2008 Issues » November 12, 2008 » AAC-17-08-00002-A Reporting Requirements of Service, Salary and Deduction Information for Employers to NYSLRS
AAC-17-08-00002-A Reporting Requirements of Service, Salary and Deduction Information for Employers to NYSLRS
11/12/08 N.Y. St. Reg. AAC-17-08-00002-A
NEW YORK STATE REGISTER
VOLUME XXX, ISSUE 46
November 12, 2008
RULE MAKING ACTIVITIES
DEPARTMENT OF AUDIT AND CONTROL
NOTICE OF ADOPTION
I.D No. AAC-17-08-00002-A
Filing No. 1062
Filing Date. Oct. 24, 2008
Effective Date. Nov. 12, 2008
Reporting Requirements of Service, Salary and Deduction Information for Employers to NYSLRS
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Amendment of sections 315.2 and 315.3 of Title 2 NYCRR.
Statutory authority:
Retirement and Social Security Law, sections 11, 34, 311 and 334
Subject:
Reporting requirements of service, salary and deduction information for employers to NYSLRS.
Purpose:
To provide guidance to participating employees concerning whether an individual is an employee or independent contractor.
Text of final rule:
Section 315.2 is amended to read as follows:
§ 315.2 [Definition]Definitions.
(a) As used in this Part, the term employer shall mean the State, a participating employer, and any other unit of government or organization obligated or agreeing to make contributions to the retirement system on behalf of its employees.
(b) The term employee shall mean an individual performing services for the employer for which the employer has the right to control the means and methods of what work will be done and how the work will be done.
(c) The term independent contractor shall mean a consultant or other individual engaged to achieve a certain result who is not subject to the direction of the employer as to the means and methods of accomplishing the result. For purposes of this part, when making a determination as to whether an individual is an employee or an independent contractor, the factors set forth hereinafter in § 315.3 (c) (2) shall be considered by the employer.
Subdivision (c) of section 315.3 is amended to read as follows:
(c) Employees to be reported.
(1) Only persons who are active members of the New York State and Local Employees' Retirement System or the New York and Local Police and Fire Retirement System and who have been assigned a registration number shall be included in the above reporting requirements. In the case of employees who are in the process of being registered to membership, all service, salary and deductions data and mandatory contributions shall be accumulated by each employer and such accumulation shall be included with the first monthly report which is due after the employee's registration number has been assigned. Members of the New York State and Local Employees' Retirement System and the New York State and Local Police and Fire Retirement System must be reported on separate reports.
(2) Determination by Employer. An individual serving the employer as an independent contractor or consultant is not an employee and should not be reported to the retirement system. The employer has the primary responsibility for determining whether an individual is rendering services as an employee or as an independent contractor. When making such a determination, the employer must consider the following:
(i) Factors supporting the conclusion that an individual is an employee rather than an independent contractor:
(A) the employer controls, supervises or directs the individual performing the services, not only as to result but as to how assigned tasks are to be performed;
(B) the individual reports to a certain person or department at the beginning or during each work day;
(C) the individual receives instructions as to what work to perform each day;
(D) the individual's decisions are subject to review by the employer;
(E) the employer sets hours to be worked;
(F) the individual works at established and fixed hours;
(G) the employer maintains time records for the individual;
(H) the employer has established a formal job description;
(I) the employer's governing board formally created the position with the approval of the local civil service commission where necessary;
(J) the employer prepares performance evaluations;
(K) the employer requires that the individual attend training;
(L) the employer provides permanent workspace and facilities (including, but not limited to, office, furniture and/or utilities);
(M) the employer provides the individual with equipment and support services (including, but not limited to, computer, telephone, supplies and/or clerical assistance);
(N) the individual is covered by a contract negotiated between a union and the employer;
(O) the individual is paid salary or wages through the employer's payroll system;
(P) tax withholding and employee benefit deductions are made from the individual's paycheck; and
(Q) the individual is entitled to fringe benefits (including, but not limited to, vacation, sick leave, personal leave, health insurance and/or grievance procedures).
(ii) Factors supporting the conclusion that an individual is an independent contractor rather than an employee:
(A) the individual has a personal employment contract with the employer;
(B) the employer pays the individual for the performance of services through the submission of a voucher;
(C) the individual is authorized to hire others, at the expense of the individual or a third party, to assist the individual in performing work for the employer;
(D) the individual provides similar services to the public;
(E) the individual is concurrently performing substantially the same services for other public employers; and
(F) the individual is also employed or associated with another entity that provides services to the employer by contract, retainer or other agreement
(iii) Presumption:
Except as prohibited by Section 2051 of Part 3 of Article 41 of the Education Law, which provides that a lawyer shall not simultaneously be an independent contractor and an employee of a school district or BOCES for the purpose of providing legal services, in the case of an individual whose service has been engaged by an employer in the capacity of attorney, physician, engineer, architect, accountant or auditor and who is also a partner, associate, including an attorney in an "of counsel" relationship, or employee of another organization or entity that has a contract, retainer or other agreement to provide professional services to the participating employer, it shall be presumed that the individual is an independent contractor and not an employee of the participating employer;
(iv) Examples:
(A) An attorney who, in providing services to a participating employer, sets his own hours, is not supervised in the manner in which the work is performed, uses his or her own office and staff and has no deductions from salary is considered to be an independent contractor.
(B) A physician who in performing examinations and providing medical services for a school district, is provided with office space in the school, has set hours, is provided with supplies and receives a fixed salary with regular payroll deductions is considered to be an employee;
(3) Written explanation by participating employers; certain professions. In the case of an individual whose service has been engaged by a participating employer in the capacity of attorney, physician, engineer, architect, accountant or auditor and the participating employer has determined that the individual is rendering service as an employee and, therefore, may be eligible for credit with a retirement system, such employer shall submit to the retirement system, in a form prescribed by the Comptroller and certified by the chief fiscal officer of the employer, an explanation of the factors that led to the conclusion that the individual is an employee and not an independent contractor or consultant. Such certification shall be submitted to the retirement system at the time the individual is registered to membership or, in the case of an individual who is already a member of the retirement system, at the time the individual is first reported by the participating employer to the system. In addition, such employer shall submit copies of documentation pertaining to the appointment of the individual as an employee and the decision to report the individual to the retirement system as well as the acceptance of the appointment by the local civil service commission where necessary. In the event appointments are made by a governing board of the participating employer, such documentation shall include a copy of the minutes of the meeting of such employer's governing board.
(4) Explanation at the request of the retirement system. In the case of any individual who is currently a member or a retiree of a retirement system, the retirement system may require that an employer submit to the retirement system an explanation of the factors that led to the conclusion that an individual engaged by the employer was an employee. An employer receiving such a request shall submit a response within thirty days of the date of the request or provide an explanation as to why it is unable to do so.
(5) Adjustment reports. In the event the retirement system or an employer determines that an individual has been incorrectly reported to a retirement system, the employer, upon notification from the retirement system, or upon its own initiative, shall promptly file salary and service adjustment reports with the retirement system to correct the error.
Final rule as compared with last published rule:
Nonsubstantial changes were made in section 315.3(c)(2)(iii).
Text of rule and any required statements and analyses may be obtained from:
Jamie Elacqua, Office of the State Comptroller, 110 State Street, Albany NY 12236, (518) 474-9024, email: JElacqua@osc.state.ny.us
Please be advised that the amendment made to section 315.3 (c)(2)(iii) is made for the purpose of conforming the text of the regulation to the provisions of chapter 640 of the laws of 2008 and therefore does not necessitate a revision to the previously published Regulatory Impact Statement, Regulatory Flexibility Analysis, Rural Area Flexibility Analysis or Job Impact statement.
